Takeaways from Trump’s victories over special counsel Jack Smith
CNN
By Tierney Sneed, Devan Cole and John Fritze, CNN
(CNN) — Even before special counsel Jack Smith formally asked that his criminal cases against Donald Trump be dismissed, it was already guaranteed the president-elect would never see a jury.
Smith on Monday dropped both the 2020 election subversion prosecution against Trump and the charges accusing Trump of mishandling classified documents.
The special counsel stressed his decision was not about the strength of his case against Trump, but his reasoning hung on the Justice Department’s long-held belief that the Constitution prohibits prosecutions against sitting presidents.
Even if prosecutors had believed that they could have kept the cases on life support into the second Trump presidency, the president-elect had already indicated that he planned to fire Smith and his team, a vow that breached the usual norms surrounding a special counsel investigation.
Trump’s reelection this month was the straw that broke the back of a camel that had been buckling under slow-walking courts and novel legal arguments. Smith’s filings suggested he could bring the charges again, though Trump may seek to foreclose that possibility by pardoning himself – an unprecedented move.
Also looming over Trump’s second term is the Republican’s promises to go after those who prosecuted him, a vow echoed by his pick for attorney general.
Here are takeaways from Smith’s move to seek the cases’ dismissal and how his prosecutions got to this point:
Trump’s election and retribution promises made this day inevitable
Trump’s reelection earlier this month ensured that his federal criminal cases would face an early end.
The former president vowed during his campaign to fire Smith if voters sent him back to the White House – a move at odds with how other presidents have handled special counsels.
“Oh, it’s so easy. It’s so easy,” Trump said in October when asked by conservative radio host Hugh Hewitt whether he would “pardon yourself” or “fire Jack Smith” if reelected. “I would fire him within two seconds.”
In the end, though, Trump didn’t need to sack the special counsel to kill the two cases. He was already benefiting from a legal strategy of delay that made sure no trials got underway before Election Day – which ultimately forced Smith’s hand.
A few days after Trump’s reelection, the special counsel asked the judge overseeing the DC case to pause deadlines in that matter so his team could assess how to move forward with the unprecedented prosecution. Nearly three weeks after Election Day, he submitted his filings to the courts in DC and Florida.
The president-elect, meanwhile, has repeatedly promised to seek political retribution against Smith and others whom he believes have unfairly pursued him during his four years out of office. His pick for attorney general, Pam Bondi, appears ready to be a loyal foot soldier in those efforts.
“The Department of Justice, the prosecutors will be prosecuted — the bad ones,” Bondi, who served for a time as Florida’s attorney general, said in a TV appearance in August 2023.
“The investigators will be investigated. Because the deep state, last term for President Trump, they were hiding in the shadows. But now they have a spotlight on them, and they can all be investigated,” she added.
What will we learn next?
Before Trump takes his oath of office next year, Smith plans to release a final report as required by law on his investigations into Trump, a source familiar with the matter tells CNN.
Attorney General Merrick Garland is expected to publicly release it, as he has with past special counsel reports.
But it’s unclear how much new information would be included, especially in the election subversion case, where Smith recently filed hundreds of pages of legal arguments and evidence gathered for that prosecution.
The Supreme Court played a major role
If part of what happened was that Smith simply ran out of time to pursue the case against Trump, then the six-justice conservative majority on the Supreme Court had a key role to play in slowing things down.
The high court granted Trump sweeping immunity from criminal prosecution for official actions in a highly anticipated 6-3 decision that was handed down in July, limiting the special counsel’s ability to move forward. Some of Trump’s critics slammed the decision itself, but others faulted the court for the time it took to deliver it.
It was clear that several conservative justices saw the ruling not as a gift to Trump but as a way to head off spiraling and potentially politically motivated prosecutions. While the court’s decision may ultimately meet that goal, the ruling is also widely viewed as removing a check on presidents.
Chief Justice John Roberts, a conservative, wrote that Congress couldn’t criminalize a president’s conduct when he is “carrying out the responsibilities of the executive branch.” Justice Sonia Sotomayor, a liberal, warned in dissent that the decision would set up future presidents to be “a king above the law.”
The Supreme Court initially denied Smith’s effort to resolve the immunity questions in December – allowing the normal process to play out with a federal appeals court wading in first. Two months later, in mid-February, after the appeals court ruled in Smith’s favor, it was Trump who asked the justices to review the question of presidential immunity.
The court granted the case in February but did not hear arguments until the end of April. It handed down its decision on the final day of its term, on July 1. And the case was finally returned to the trial-level court in DC in August.
Judge Cannon killed the Mar-a-Lago case
The election subversion case was always expected to face years of litigation over the questions it raised about criminalizing acts taken by a sitting president.
But the case in which Trump was accused of mishandling national defense information – was viewed as a much more straightforward prosecution, for how it focused on Trump’s post-presidency conduct and dealt with a well-established area of law.
Trump, however, hit the jackpot with the assignment of that case to Judge Aileen Cannon, an appointee of his with little trial experience who had already treated the investigation with remarkable hostility when she oversaw pre-indictment lawsuit Trump brought challenging the FBI’s search of his Florida Mar-a-Lago resort.
Cannon threw a number of wrenches into the prosecutors’ case before dismissing it entirely this summer on the grounds that Smith was unlawfully appointed. Her handling of the charges was widely panned by legal experts, and her dismissal ruling as set for review by the 11th US Circuit Court of Appeals until those deadlines were postponed with Trump’s win.
Notably, Smith is not ending the Justice Department’s pursuit of the two Trump employees, Walt Nauta and Carlos De Oliveira, who were charged with allegedly assisting their boss in efforts to hinder the federal probe.
What to do next in the case will be a question for the incoming Trump Justice Department. While Trump might want to have the charges against his allies dropped, the DOJ will have to balance that against an institutional desire to wipe off the books a dismissal ruling that could undermine special counsel investigations in the future.
Smith keeps door open for charges to be brought again
In both of his cases against Trump, Smith said he was dropping the charges against the president-elect “without prejudice,” which in theory would keep open the door for charges to be brought again in the future. While pointing to the immunity Trump was about to receive by reentering the White House, Smith repeatedly said characterized that immunity as “temporary.”
Smith’s filing in the election subversion case in Washington, DC, included a longer discussion of how he had come to the decision to drop that case, where he had to weigh the longstanding DOJ position barring prosecutions of sitting president against the principle that no man is “above the law.”
Smith said he consulted with DOJ lawyers on the question, and they also weighed the possibility of pausing the case until Trump no longer had the immunity of the presidency protecting him. Ultimately, however, the Department’s Office of Legal Counsel concluded that the prohibitions on prosecuting sitting presidents is “categorial,” including for indictments handed up before a defendant enters office, Smith said.
Monday’s move by Smith will likely bring attention – and perhaps criticism – to the Justice Department’s views, which have not yet been tested directly by courts.
Trump lawyers get top jobs in his DOJ as a thank you
Smith’s dismissal filings brings to a close a chapter for the criminal attorneys who were mostly successful in staving off the criminal prosecutions against Trump. But a new chapter has already opened for several members of the Trump legal team who have already been rewarded with plum positions in his incoming administration.
Todd Blanche, who played a central role in the DC prosecution and in other Trump cases, has been tapped by Trump for the DOJ’s No. 2 role, deputy attorney general.
John Sauer, who argued the immunity dispute on Trump’s behalf before the Supreme Court, has been selected by Trump to be US solicitor general, the federal government’s top lawyer before the high court. Both positions are subject to Senate confirmation.
Additionally, Trump announced that another member of his personal legal team, Emile Bove would serve as acting deputy attorney general while Blanche was waiting for confirmation and then move to principal associate a deputy attorney general, a position that does not go before the Senate.
CNN’s Paula Reid contributed to this report.
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